1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.8388 OF 2023 BETWEEN: SRI. B.S. MANJUNATH S/O LATE B. K. SRIKANTAIAH, AGED ABOUT 71 YEARS, R/AT NO.282/A, 2ND A MAIN ROAD, 1ST PHASE GIRINAGARA, BANGALORE - 560 085. ...APPELLANT (BY SRI. KAMALESHWARA POOJARY, ADVOCATE) AND: SMT. LEELA W/O SRI. SIDDAGANGAPPA R AGED ABOUT 41 YEARS, R/AT FLAT NO.102, SRIRAMA SANNIDHI, 1ST MAIN ROAD, 4TH CROSS ROAD, REMKO BHEL LAYOUT, BEML LAYOUT, RAJARAJESHWARI NAGAR, BENGALURU - 560 098. …RESPONDENT (BY SRI. D.R.RAVISHANKAR, SENIOR COUNSEL FOR SRI. NAGARAJ S. JAIN, ADVOCATE) THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 20.11.2023 PASSED ON I.A.NOS.1 AND 2 IN OS.NO.7897/2022 ON THE FILE OF THE XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, CCH- 12 ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC AND REJECTING THE I.A.NO.2 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC. THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16.01.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: 2 CORAM: HON'BLE MR JUSTICE K.NATARAJAN CAV JUDGMENT This appeal is filed by the appellant/defendant under order 43 Rule 1 (r) of CPC for setting aside the order passed by the Addl. City Civil and session Judge, Bangalore in OS.No.7897/2022 for having granted injunction in favour of the respondent/plaintiff on I.A.No.1 under Order 39 Rule 1 of CPC restraining the appellant/defendant from interfering with the schedule property and rejecting the I.A.No.2 filed by the appellant for granting injunction in respect of written statement/counter claim property. 2. Heard the arguments of learned counsel for the appellant and the learned counsel for the respondent. 3. The appellant was the defendant and the respondent was the plaintiff before the Trial Court. The ranks of the parties are retained for the sake of convenience. 4. Learned counsel for the appellant has contended that the order passed by the trial court is erroneous and perverse. There is no prima facie case made out by the plaintiff. There is no balance of convenience in favour of the plaintiff and if injunction is not RESERVED FOR ORDERS ON: 16.01.2025 PRONOUNCED ON : 14.02.2025 3 granted, no irreparable loss would cause to the plaintiff. Such being the case, granting injunction in favour of the plaintiff does not arises. On the other hand, the defendant made out prima facie case in his favour for granting injunction and defendant is in possession of the schedule property. Such being the case, question of rejecting the application of the defendant does not arises. Hence, prayed for allowing the appeal. 5. Per contra, learned Senior counsel for the respondent supported the order passed by the trial court and contended that the plaintiff purchased the schedule property from the vendor Sri.H.Lankappa under sale deed dated 5.12.2022 the same was reflected in the encumbrance certificate issued by the Sub Registrar. The property standing in the name of her vendor there were no transactions from 1989 to 2022. It is further contended that the vendor of the plaintiff had originally purchased the land of 2 acres and 30 guntas in Sy.No.238 of Halagevaderahalli village from one Hanumanthraju , gajendra and narayana i.e, sons of H.Hanumantharaju C., through registered sale deed. The daughters of the H.Hanumantharaju C filed suit for partition which came to be decreed and in the FDP proceedings 1 acre 13 guntas fallen to the share of the daughters which was re-numbered as Sy.No.238/2 and remaining 1 acre 13 guntas continued in the name of vendor as Sy.No.238/1. The land got converted and suit schedule property 4 was one of the site carved out of the said survey number and the name of the vendor is appearing in the BBMP records and even BBMP has issued khatha. The plaintiff purchased the schedule property but the defendant trying to interfere in the schedule property illegally contending that the defendant has purchased property on 03.12.2012 is utterly false. Therefore, considering the prima facie case, the trial court rightly granted injunction in favour of the plaintiff and rejected the contention of the defendant and there is no need to interfere in the said order. Hence, prayed for dismissing the appeal. 6. Having heard the arguments perused the records, the point that arises for my consideration are, 1. Whether the plaintiff has made out prima facie case, in his favour? 2. Whether plaintiff was put into hardship and loss if injunction is not granted in view of the rival claim by the defendant in his application for granting injunction? 3. Whether the balance of convenience lies in whose favour? 4. Whether order of trial court calls for interference? 5 7. Perused the records and impugned order which is under challenge. The plaintiff filed the suit for bare injunction restraining the defendant from interfering with the suit schedule property which is narrated as under "Vacant sites bearing No.3625/238/1/15 in ward No.160 of BBMP Rajarajeshwari Nagar, situated at Halagevaderahalli measuring East and West 50 ft and North to South 45 ft measuring 2250 sq.ft. bounded on the, East by : Vacant site No.16 West by: Vacant site no.14 North by : Private property South by : Road 8. The plaintiff filed affidavit along with the Interlocutory Application contending that the plaintiff is absolute owner of the schedule property purchased from Lankappa dated 5.12.2022 under sale deed and contended the vendor was the owner of the property measuring 2 acre 30 guntas in Sy.No. 238 and after filing the suit by his sister in O.S.No.5691/1998 suit for partition was decreed and the sister of the Lankappa got half share and the vendor of the plaintiff got half share in 238/1 and the sister got 238/2 by re- numbered after the partition. The vendor obtained the conversion order and formed the site out of the said layout. The plaintiff had purchase the schedule property, but the defendant is trying to 6 interfere. Whereas, the defendant filed objection as well as he also filed an application under 39 and rule 1 and 2 of CPC. Also, filed counter claim in the suit contending that the very suit for bare injunction is not maintainable. The plaintiff required to file suit for declaration and possession. Since defendant purchased the schedule property of the counter claim on 3.12.2012 from his vendor Rathna murthy. The site has been handed over to the defendant he has put up the compound wall it was put up by the vendor in 2010 itself. Khatha also changed in his name, but the plaintiff got created the documents in the year 2022 and the defendant came to know the plaintiff white washed the front portion of the counter claim property and removed site number. and the name of the defendant. The plaintiff also with high handed manner demolished the front portion of the wall of the counter claim property. The defendant resisted the same, therefore the defendant is having prima facie case in his favour for granting injunction. therefore, prayed for rejecting the application of the plaintiff for injunction and granting injunction in his favour. The trial court after considering the records allowed the injunction application filed by the plaintiff and dismissed the injunction application filed by the defendant. Hence the defendant is before this court. 7 9. The defendants property shown in the affidavit accompanying the application and the counter claim is a residential site property bearing no.373 formed by VBHCS situated in Sacchidananda Nagar, Halagevaderahalli, measuring east west 50 ft and north to south 70 ft , in all measuring 3500 sq.ft bounded on East by site no.372, West by site no.374, North by site no.358, South by road. 10. On perusal of the boundaries, mentioned therein and the especially southern boundary are one and the same, but the site numbers differs apart from measurement of the property. The plaintiff claim measurement of the property is 2250sq.ft whereas measurement of the property claimed by the defendant is 3500sq.ft and different boundaries in respect of adjacent sites. The counsels also produced the documents having purchased the properties and also the photographs. 11. On careful perusal of the records reveals that the land in Sy.No.238 was belonging to one Lankappa. The vendor of the plaintiff who purchased the property under the sale deed dated 21.07.1988 from the children of one Hanumanthappa measuring 2 acres 30 guntas. Subsequently, Lankappa vendor of the plaintiff 8 executed a GPA and agreement of sale in favour of the Vishwabharhi Housing Co-operative Society Limited. Meanwhile other siblings i.e., sister of Hanumanthappa filed a suit against the vendor of the plaintiff in OS.No.7961/2022 for partition. The said suit was decreed, the half of the land i.e., 1 acre 15 guntas fallen to the share of the sister of Hanumanthappa's and by way of purchase the vendor of the plaintiff got only 1 acre 15 guntas. The said land already handed over to the Vishwabharhi Housing Co-operative Society Limited, they formed the layout with other lands and formed the sites, one of the site purchased by the respondent / defendant herein. Whereas the vendor of the defendant put up the compound wall in 2010 itself and katha also changed in his name, but the plaintiff said to be purchased the property from Lankappa in the year 2022 by mentioning some site number with lesser measurement. Therefore, the vendor of the plaintiff Lankappa had already lost the right title over the property and in view of the execution of the agreement of sale and GPA the Vishwabharthi Housing Co-operative Society Limited has become ostensible owner under Section 41 of the Transfer of Property Act, 1882 and they already sold the property to the defendant's vendor. It has been the case, the plaintiff do not have any prima facie case in his favour to show that he has derived any right title from his vendor Lankappa. 9 12. The Trial Court had not properly appreciated the documents on record whereas the defendant claims the property under the allotee of the Vishwabharhi Housing Co-operative Society Limited and purchased the site, where they put up the compound wall. Now under the guise of creating a sale deed the plaintiff trying to interfere with the property of the defendant which cannot be allowed. 13. This Court also held in a connected MFA.No.2997/2024 that Lankappa has no right title over the property as he had already executed GPA in favour of the society and society has become ostensible owner, they formed the layout and sold the site. It has been a case until cancelling the agreement of sale, the GPA in favour of the society and sale deed of the defendant, the plaintiff cannot seek any relief for injunction. When there is a cloud over the title of the plaintiff bare injunction suit is maintainable. The plaintiff is required to convert the suit into declaration suit. On the other hand the defendant claims counter claim in written statement that the property which was purchased through the society has became the case, the balance of conveyance in favour of the defendant but not in favour of the plaintiff. It is also brought by the notice to the counsel for appellant that the plaintiff's vendor Lankappa purchased the site from the same society which was formed in Sy.No.238, if the said document is considered then the vendor of the plaintiff 10 Lankappa had lost the land in Sy.No.238 long back and he himself purchased a site from the society. Such being the case, the plaintiff cannot claim any right, title, interest over the Sy.No.238. Therefore, the plaintiff will not get any right over the suit schedule property. Therefore, the plaintiff required to convert the suit into declaration suit and ascertain the title till then the question of granting injunction in favour plaintiff does not arises. On the other hand if the defendant is not able to show if the injunction is not granted, the defendant will be put to hardship and loss. Therefore, the suit schedule property is required to be protected until disposal of the suit. Thereby, the order of the Trial Court is require interference and modified by this Court. 14. Accordingly, I pass the following: ORDER i. The appeal is allowed; ii. The order of the Trial Court granting injunction in favour of the respondent / plaintiff is set aside; iii. The parties are directed to maintain status quo at the suit schedule property until disposal of the suit. Sd/- (K.NATARAJAN) JUDGE PNV CT:SK